TR Daily Court: Parties Lack Standing to Appeal Copper Retirement Order
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Thursday, January 23, 2020

Court: Parties Lack Standing to Appeal Copper Retirement Order

The U.S. Court of Appeals for the Ninth Circuit (San Francisco) today denied for lack of standing a petition by public interest groups to review a 2017 FCC wireline broadband deployment order that rolled back 2015 requirements regarding incumbent telcos’ obligations to provide notice of copper retirement.

The FCC’s 2017 order in WC docket 17-84 also eliminated the 2015 order’s “de facto retirement” rule, which dealt with retirement caused by lack of maintenance, and the “functional test” rule, which was to be used to determine when service change amounts to discontinuation, reduction, or impairment under section 214 of the Communications Act (TR Daily, Nov. 16, 2017).

Public Knowledge, the Greenlining Institute, The Utility Reform Network (TURN), and the National Association of State Utility Consumer Advocates (NASUCA) argued in their petition that the 2017 order violated the Communications Act and the Administrative Procedure Act (APA) by ignoring the record or rejecting evidence in the proceeding.

In an unpublished memorandum issued today in “Greenlining Institute et al. v. FCC” (case 17-73283), Circuit judges M. Margaret McKeown and Jay S. Bybee and Senior District Judge Joe Gaitan Jr. for the Western District of Missouri, sitting by designation, said that the organizations challenging the order lack independent standing—that is, independent of the interests of members they represent—because they “offer no estimate of the resources that will be diverted as a result of the order, let alone ‘uncontradicted evidence’ that the proposed actions ‘required, and will continue to require, a diversion of resources, independent of expenses for this litigation, from their other initiatives.’”

They “similarly failed to establish associational standing, which requires that one of their ‘members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’ … Although Petitioners’ purpose is germane to the interests at stake in this appeal, which does not require the participation of individual members, no member has demonstrated that ‘he or she ‘is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury is both real and immediate, not conjectural or hypothetical,’” the three-judge panel said.

FCC Chairman Ajit Pai responded to the court’s action in a statement, saying, “I am pleased that the Ninth Circuit has rejected this challenge to the FCC’s efforts to expedite the transition from the networks of yesterday to the networks of tomorrow. This is a victory for American consumers, who will benefit from faster fiber deployment and the increased availability of next-generation services.”

Public Knowledge Senior Vice President Harold Feld said, “We are deeply disappointed with the Court's decision to dismiss the case on standing grounds. As the California wildfires demonstrated, the deregulation of our telephone network can have devastating consequences. We will confer with our co-petitioners and consider what other avenues to pursue to ensure that all Americans have affordable, reliable access to critical communications infrastructure.” —Lynn Stanton, [email protected]

MainStory: FederalNews Courts FCC BroadbandDeployment

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